Charles Hayes: Motion for a Directed Verdict or Mistrial

UNITED STATED DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LONDON

MOTION FOR DIRECTED VERDICT
OR MISTRIAL

Comes the Defendant, by and through counsel, and moves
this Honorable Court for an Order directing a verdict in favor
of the Defendant, as was moved for at the end of the
Government's case-in-chief or, in the alternative, for a
mistrial on the grounds that the primary Government witness
has perjured himself on the stand and that the Government
failed to comply with Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C.A. & 3500
(West 1985) by not disclosing material that would have permitted
the Defendant to impeach the witness's credibility.

As grounds for his Motion Defendant states the following:

STATEMENT OF FACTS

1. Defendant was arrested by the FBI on October 22, 1996
and charged with violation of Title 18 U.S.C. 1958, Use of
interstate commerce facilities in the commission of murder-
for-hire. At his arraignment on October 23, a Detention Hearing
was scheduled for October 25, 1996.

2. At the Detention Hearing testimony was taken from
three individuals, and the Court relied mostly on the
testimony of FBI Special Agent David Keller to reach its
conclusion of October 28 that the Defendant be held without
bond and that a trial of the Defendant be scheduled for
December 2, 1996.

3. At some point thereafter, then-attorney for the
Defendant, Hom. Warren Scoville, was allowed to withdraw and
thereafter Defendant proceeded pro se under an agreement which
would have allowed his agents access to Attorney Scoville's
law library and which would permit him to receive discovery
material from the Government. This did not take place as
promised to the Defendant and on Friday, the 22nd day of
November, he filed Emergency Motions for Discovery regarding
material to which he was entitled but to which he had been
denied access. The majority of his Motions were immediately
granted by the Court in a hearing on November 26, 1996. At
this hearing, the undersigned counsel entered his appearance
on behalf of the Defendant and, upon his motion, a continuance
of the trial date was granted and trial was set for Monday,
January 13, 1996. The Court, again, denied bond for Defendant.

4. During the interim between October 26 and January 13, 1997,
the Court overuled motions for the Defendant for
Reconsideration of Bond Status and for a Bill of Particulars.
It was and is alleged by the Defendant that his continued
incarceration and prior lack of knowledge as to the identity
of his accuser has unconstitutionally denied him the ability
to participate in preparing his defense. In hindsight, the
effect of this arbitrary denial has been to permit the
Government to present to the Court and the jury, as its key
witness, a man whose history, background and even name and
identity are suspect, due to either (1) the Government's
incomplete investigative effort and blatant lack of due
diligence in substantiating his story or his offered testimony;
or (2) the Government's intentional withholding of
information which the Government, in fact, had in its
possession but chose not to disclose. Defendant could have
properly prepared for this ruse by the Government had his
Motion for Bill of Particulars been granted or had he been
free to perform his own background investigation.

5. On January 13, 1997, the first day of the trial, and
immediately prior to the calling of the first witness, the
undersigned counsel for Defendant was handed the "rap sheets",
(NCIC reports on criminal backgrounds) as the Government put
it, of two of their witnesses, John Anthony Hayes and Lawrence
Myers, for the purpose of limiting what items listed might be
used for impeachment of these witnesses by this counsel.
Concomitant with handing these documents to this counsel, the
Assistant United States District Attorney (AUSDA) addressed
the Court with respect to the information contained in the
report on John Anthony Hayes. He drew the Court's attention to
an old possession of marijuana conviction. He also reported
that there were no felonies on the record of Mr. Myers and that
as far as he could tell, there was only one charge dealing
with deceit and that was where Mr. Myers had walked out
of a Waffle House without paying the bill after a dispute
with the manager. This resulted in a Guilty Plea to a charge
of Defrauding an Innkeeper. Moreover, the AUSDA said, he would
highlight that charge on the copy of the report he was handing
to the Court so that the Court could find it on the report more
easily. Marking the report, he handed it to the Court who
asked again, "There are no Felonies on here?" The United
States' Attorney said, "no." The Court then ruled that
Defendant's counsel could only use the misdemeanor charge of
Defrauding an Innkeeper to impeach the Government's witness as
to his honesty or dishonesty. Defendant's counsel accepted
that ruling without objection due to the United States
Attorney's representation to the Court and to counsel that
nothing else on that five (5) page report would legally
qualify as impeachment evidence with respect to its witness
Lawrence Myers. This, of course, was later found to be
entirely untrue. There is no doubt that the discovery of the
existence of an incredible amount of highly damaging material,
appropriate for use to impeach the credibility of this witness
from this report, was not only delayed, but almost
undiscovered altogether, because the Government, by its
Courtroom assertions and behavior, had intentionally directed
the Court's and counsel's attention to a misdemeanor
conviction, an obvious red-herring, and away from the notation
on the second and third pages of the record which show a state
ID criminal number from California. There was absolutely no
mention of California during the discussion in Court as to the
information contained in this report.

6. Thereafter, on the first day of trial, the Government called,
as its second witness, Mr. Lawrence Myers. This man
testified that during the course of his duties as a writer for
a magazine called Media By-Pass, he contacted the Defendant
about doing a story about him for the magazine. According to
Mr. Meyers, he initiated telephone contact with the Defendant
in June of 1995 and after many such conversations, they met
for the first time in June of 1996. He further stated that
after their first meeting, the Defendant began contacting him
by phone about finding a "wet boy" (assassin) to kill a "drug
dealer" from Louisville. This allegedly happened more than
once over the phone with the Defendant becoming more agitated
with the passage of time. None of these calls were ever
recorded by the witness even though he initiated them,
allegedly on behalf of the magazine, a fact which gives rise
to significant doubts as to Mr. Myer's testimony as to the
nature and contents of these discussions.

7. Further, through the testimony of Mr. Myers, the
Government introduced its first two (2) exhibits into
evidence. One consisted of a copy of a fax allegedly sent by
the Defendant and, the second, a piece of paper containing the
name, address and phone number of Defendant's son typewritten
at the top, with an additional handwritten physical
description of the son at the bottom. The witness further
testified that the Defendant had given him the paper with the
typing at the top and that the witness himself had written the
description at the bottom during a conversation with the
Defendant during their second face-to-face meeting on
August 27, 1996. It is this witness's testimony as to what
allegedly occurred during that meeting, and what was said,
that is the now tainted core basis of the charge against the
Defendant. Thus, it is on the credibility, or non-credibility,
of this witness that the jury must make its preliminary
decision as to the credibility of the Government's whole case.

8. Just prior to Mr. Myers taking the stand, the Assistant United
States District Attorney handed counsel for Defendant a seven or
eight page typewritten statement given to
the Government by the witness and purported that only the
second half dealt with the witness's testimony and, again,
based on the Courtroom representations of the Government,
Defendant's counsel agreed that paragraphs 1 through 17 of the
statement would not be used to attempt to affirmatively
impeach the witness, unless his testimony directly
contradicted the information contained in the statement. This
was clearly an attempt by the Government to divert attention
from the fact that its own investigation into the witness'
background and credibility was, at least, incomplete and it
wanted this lack of due diligence, or perhaps manifest deceit
by one or more of its agents, to be cured by this counsel's
agreement with respect to same. Again, counsel's agreement was
obtained, based only on the assertion of the Assistant United
States District Attorney that he didn't "think there is anything
in those first 17 paragraphs that would be inconsistent or--it can
be used for impeachment purposes based on his direct testimony."
(See Exhibit 1, page 29, Lines 16-19).

9. As a direct result, the ability of this counsel to
effectively cross-examine the Government's key witness was
severely and detrimentally limited by: (1) the Government's
assertions as to the contents of official records; (2) its
lack of due diligence in ascertaining what other pertinent
information might be contained in its own official report as
to the legal status of its own witness; and (3) by the
intentional marking of that report in open Court in order to
direct the Court's and this counsel's attention away from a
line on page two and three which would have inevitably led,
then, to the now-discovered facts that its witness, Mr. Meyers,
had been (1) charged with Felony Extortion in California in
1986, (2) committed to institution for mental incompetency,
(3) then released after pleading Guilty to an amended charge
of Attempted Grand Theft, (4) sentenced to 18 months, and
(5) probated on the condition that he not violate the law and
comply with the terms of his release. Perhaps most
significantly, Mr. Myers failed to appear for his final
sentencing and now there is, predictably, a warrant issued for
his arrest by the state of California. The United States
Government had, as its key witness in this extremely serious
matter, an extortionist and one-time mental incompetent whose
background was either glossed over and intentionally
misrepresented by the Government, or unknown to them because
of a lack of due diligence. The Government subpoenaed this man
as their witness, accommodated him in its witness room in the
Federal Building in London, called him into the Courtroom and
put him on the stand under oath, and acted as if it simply did
not know that he had a Felony Fugitive warrant out on him from
California.

10. The information contained in above-paragraph was not
discovered about the Government's witness, Mr. Myers, because
of anything that the Government did at any time during this
trial process. This background of the Government's key
witness, rich with impeaching material, was discovered by this
counsel only after the third day of trial and two days after
Lawrence Myers had been released by the Government from its
subpoena. As this Court is now aware, his information was
offered by law enforcement officials in Tennessee who became
aware, through news reports, that the person known as Lawrence
Myers was a key witness in the case against the Defendant herein.
They felt an obligation to share with the Court their experience
with Mr. Myers and their view that he is absolutely
unreliable, probably perjurious and wanted in California as a
fugitive.

11. This counsel received a note from a Court baliff at
the defense counsel's table on Wednesday afternoon, the third
day of trial, on or about 4:00 p.m., instructing counsel to
call a number in Tennessee regarding the records of Lawrence
Myers. At approximately the same time, an AUSDA left the
Government's table and returned shortly thereafter with a
package of materials, the contents which were unknown to
counsel. When counsel returned to his office Wednesday night
and returned the call to Tennessee, the information about Mr.
Myers contained in paragraphs 9 and 10 above was obtained and
verified through law enforcement officials in Tennessee.

12. Counsel for Defendant then called the Assistant
United States District Attorney at about 9:00 p.m. that
Wednesday evening and the United States Attorney informed him
that they had come into possession of the actual records of
this purported background on their witness that afternoon and
they were reviewing it even as we spoke to determine if it
could be used against their witness. And agreement was reached
to bring it to the Court's attention the next morning.

13. Accordingly, this information was brought to the
Court's attention the next morning after. The Court Overruled
Defendant's Motion for a Mistrial but granted Defendant's
Motion for a Continuance until January 27, and, further, on
the Court's own, scheduled a Competency Hearing for Lawrence
Myers providing he returns to Court on that date. When asked
if Mr. Myers was under subpoena, the AUSDA replied that he
didn't think so, but interestingly, that he had told Mr. Myers
that he was.

14. WHEREFORE, Defendant, by and through counsel, alleges
that by virtue of either the intentional actions or negligent
inactions of the United States and its agents and officials,
its lack of due diligence, its withholding of vital evidence
which undoubtedly could have been used to seriously impeach
their main witness have operated to deprive this Defendant of
a fair trial. This man's testimony set the whole tone and
tenor of the trial. He tarred the personality and character of
the Defendant from the very first. These actions of the
Government, with its slight of hand in the Courtroom
concerning official records, and its alleged inability to
ascertain that its main witness was a Felony Fugitive from
California, whose arrest would likely jeopardize its case
against the Defendant, are shameful and all of them together,
or each separately considered, have operated to deprive the
Defendant of a fair trial. The Government's actions herein, at
the very least, have such an appearance of impropriety and so
taint the rest and residue of the Government's case against
Defendant, that the only appropriate relief for the
deprivation of this Defendant's Rights is for this Court to
grant Defendant's Motion to Enter a Directed Verdict of
Acquittal, made at the close of the Government's proof. In the
alternative, the Court should Order a Mistrial herein and give
bond to the Defendant, as this delay is entirely of the
Government's own making and Defendant's Constitutional rights
have been and are being violated by his continued incarceration
without bond.

ARGUMENT

In the leading case wherein a primary Government witness
perjured themselves and where the Government failed to comply
with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), and the Jencks Act, 18 U.S.C.A. & 3500 (West 1985) by not
disclosing evidence which would have permitted counsel to impeach
that witness, the Court ruled that the Defendant
was deprived of a fair trial and ordered his conviction to be
vacated. U.S. v. Kelley, 35 F3d 929, (4th Cir. 1994)

Citing Brady, supra, the Kelly Court stated,
emphatically, that "Suppression of exculpatory evidence by the
Government that is material to the outcome of a trial violates
due process, irrespective of the motivation of the
prosecutor." Also, in addition to the disclosure of
exculpatory, "due process requires the Government to disclose
material evidence affecting the credibility of Government
witnesses." Gigilo v. United States, 405 U.S. 150, 154, 92
St.Ct. 763, 766, 31 L.Ed. 104 (1972). Finally, 'Evidence is
material when "its suppression undermines confidence in the
outcome of the trial"--that is when "there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." United
States v. Bagley, 473 U.S. 667, 678, 682, 105 S.Ct. 3375, 3381,
3383-84, 87 L.Ed.2d 481 (1985).

The standard for determining what evidence is material is
explained by the Supreme Court in Kyles v. Whitley, No.
93-7927 4/19/95, wherein Justice Souter held that "a showing of
materiality does not require demonstration by a preponderance
that disclosure of the suppressed would have resulted
ultimately in the defendant's acquittal . . .", and that "Bagley,
supra, does not call for a 'sufficiency of evidence' test;
that is, 'a defendant need not demonstrate that after discounting
the inculpatory evidence in light of the undisclosed evidence, there
would not have been enough left to convict."

The third and fourth aspect of materiality discussed by
the Court in Kelly, supra, include the position that "once a
reviewing court applying Bagley has found constitutional error
there is no need for further harmless-error review" and that
materiality itself is defined "in terms of suppressed evidence
considered collectively, not item-by-item." Further, "this
imposes a burden on the prosecutor to learn of any favorable
evidence held by other government actors, such as the police,
because 'the prosecution, which alone can know what is
undisclosed, must be assigned the . . . responsibility to gauge
the likely net effect of all such evidence and make disclosure
when the point of 'reasonable probability' is reached."

Kelly, supra, went on to conclude that the Court could
not be confident that the jury's verdict would have been the
same had the withheld evidence been disclosed in that trial
and therefore the Court reversed Mr. Kelly's conviction.

THEREFORE, for all of the reasons above-listed and including
those reasons preserved on the ongoing record of trial of this
instant case, Defendant prays this Honorable Court issue a
Directed Verdict of Acquittal on such motion made at the close
of the Government's case, or, in the alternative, grant this motion
for mistrial and set a reasonable bond for Defendant, or allow his
release to a third-party cusodian as mistrial is the result of
actions and inactions of the Government and not this Defendant.

NOTICE

Please take notice that the foregoing Motion will come on for hearing
at the Court's earliest convenience.

CERTIFICATION

This is to certify that a true and accurate copy of the
foregoing Motion was served this 27th day of January, 1997 by
hand-delivering same to the United Stated District Clerk,
Eastern District, P.O. Box 5121, London, Kentucky 40745-5121 and
to United States Assistant District Attorneys Martin Hatfield and
Patrick Malloy, 1380 West Fifth Street, London, Kentucky 40741.